From the unconventional to the absurd, the year 2017 was nirvana for legal tragics.
The Supreme Court of New South Wales held that citizen’s arresting Uber drivers is, usually, inadvisable. Meanwhile, the Supreme Court of Victoria perfectly pitched (appeal pending) the largest sum of defamation damages in Australian history, and the High Court of Australia tackled New Zealand unintentionally tanking the Deputy Prime Minister.
These are some of the cases that stopped the nation in 2017.
The Long Arm of the Law – Uber BV v Howarth  NSWSC 54
In late 2014 and early 2015, Russell Howarth purported to arrest nine Uber drivers. As part of his Arresting Uber campaign, Mr Howarth produced a website, several Twitter handles, and a video montage mixed to the Game of Thrones theme. On 1 July 2015, Justice Brereton granted an interim injunction restraining Mr Howarth from arresting Uber drivers. However, Mr Howarth didn’t end his campaign there.
On 7 August 2015, driving a red Tesla, Mr Howarth tailgated and intimidated the driver of an Uber across the ANZAC Bridge in Sydney’s Inner West. At an intersection, the terrorised Uber driver, Mr Irvine, asked Mr Howarth ‘Are you right mate?‘. Clearly quick on his feet, Mr Howarth responded ‘But are you right mate?‘ in an aggressive, menacing and intimidating manner.
Uber made out all four elements of the tort of intimidation according to Justice Slattery of the Supreme Court of New South Wales. The Court granted a permanent injunction restraining Mr Howarth from intimidating and arresting Uber’s employees. Mr Howarth alleged that Uber operated in contravention of the Passenger Transport Act 1990 (NSW), and attempted to justify his arrests on the basis of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 100 – a section commonly known as the citizen’s arrest power.
Not quite happy with that submission, the Court held that Mr Howarth hadn’t exercised the power of arrest in circumstances in which it was necessary, and that he hadn’t exercised the power for the purposes of commencing criminal proceedings. Awkwardly, the plaintiffs narrowly avoided referral to the Attorney-General for themselves contravening New South Wales law.
Uber BV v Howarth  NSWSC 54 is likely to be a classic.
Hit ’em Where it Hurts – Wilson v Bauer Media Pty Ltd  VSC 521
In hindsight there was no way that the Wilson case wouldn’t drop a bomb on defamation law in Australia. An extremely high profile Australian celebrity fresh off back-to-back successes in Hollywood up against the publishers of Woman’s Day, Australian Women’s Weekly, New Weekly and OK Magazine. The damages decision was an absolute mic drop by Justice Dixon of the Supreme Court of Victoria. Rebel Wilson walked away with judgment in her name for approximately $4.5m.
The named defendants, Bauer Media Pty Ltd and Bauer Media Australia Pty Ltd (Bauer Media), engaged in a ‘campaign to ‘takedown’ the plaintiff, timed to coincide with the release of Pitch Perfect 2 in order to maximise [the] benefit for [their] commercial motives‘. Ouch. Ms Wilson claimed both general damages and special damages for economic loss.
Bauer Media’s publications kicked off their campaign by alleging that Ms Wilson was a serial liar. According to the articles, Ms Wilson systematically lied about her age, name, background and particular events in her life. The jury wasn’t impressed. To make matters much worse for the defendants, Bauer Media’s controlling minds barely seemed to show up to defend their conduct – with Justice Dixon mentioning on no less than seven occasions the ‘unexplained’ absence of ‘Bauer Media executives who exercised actual control…‘.
Bauer Media has appealed the decision. Chances are high this will be one to watch in 2018.
The Case that Actually Stopped the Nation – Re Canavan & Ors  HCA 45
The year 2017 will go down in Australian legal history as one of the most bizarre. The names Joyce, Ludlam, Nash, Roberts and Waters are now forever recorded in infamy in a judgment of Australia’s highest court. In the most absurd circumstances, the High Court of Australia was asked to decide whether the Citizenship Seven were eligible to sit in the Senate and House of Representatives.
With Canavan and Xenophon spared, the Court held that at the time of their respective nominations the remaining five were subject to some kind of foreign allegiance. The standout being the Deputy Prime Minister, who was held to have acquired citizenship of New Zealand from his father. By operation of the Constitution, s 44(i), they were all deemed to have been ‘incapable of being chosen or of sitting as a senator or a member of the House of Representatives‘. Chief Justice Kiefel may have wished for an easier first year.
The government was confident that the Court would take a somewhat liberal approach to interpreting the text of s 44(i). Ultimately that wasn’t the case. The Court rejected the approaches ‘urged on behalf of the Attorney-General, Mr Joyce MP and Senator Nash, and Mr Ludlam and Ms Waters‘. Preferring a strictly textual construction of the section, the Court pointedly held that ‘[p]roof of a candidate’s knowledge of his or her foreign citizenship status isn’t necessary to bring about the disqualifying operation of s 44(i)‘.
On that point, an honourable mention goes to former Senator Roberts of Re Roberts  HCA 39 fame, for ‘tenacious advocacy of the position to which he committed himself‘. In other words, tenacious advocacy despite the information readily apparent to the Court.
Section 44 is likely to return for further consideration next year.
It’s Really About Funding – Wilkie v Commonwealth  HCA 40
The scenes of jubilation that greeted the announcement of the result of the same-sex marriage postal survey on 15 November had their roots in a judgment of the High Court. The decision in Wilkie v Commonwealth  HCA 40 was predominantly about funding – although, realistically, the decision will probably go down in colloquial legal history as the Same-Sex Marriage Case.
Mr Wilkie, member for the electorate of Denison, advocated the position that the same-sex marriage postal survey was a waste of time and money, and that the Parliament should instead hold a conscience vote. When it seemed unlikely that the government would adopt that position, the only logical step was an attempt to indirectly litigate the matter in the High Court. Unsurprisingly, the plaintiffs were ordered to pay costs.
Neatly sidestepping the issue of standing, the Court held that information about personal opinion, including information as to the proportion of people holding an opinion, was statistical information for the purposes of the Census and Statistics Act 1905 (Cth), s 9(1)(b). The Court also held that Parliament didn’t impermissibly give up its power to the Finance Minister and the conditions for an advance to the Finance Minister for the purposes of the Appropriation Act (No 1) 2017-2018 (Cth), ss 10 & 12, had been met. This decision allowed the survey to proceed as planned.
With the government intending to have same-sex marriage legislation through Parliament by Christmas, don’t rule out more court challenges in the marriage space.
A Tendency to Suppress – Hughes v the Queen  HCA 20
In slightly more traditional legal news, the High Court also heard argument in Hughes v the Queen  HCA 20. The Hughes decision settled a division that was beginning to arise between New South Wales and Victoria as to the admission of tendency evidence.
Robert Hughes was arraigned in New South Wales on an indictment charging him with 11 counts of sexual offences committed against underage girls. The prosecution sought to adduce tendency evidence. Admissibility was determined prior to a jury being empanelled. The subsequently empanelled jury returned a verdict of guilty on 10 of the 11 counts. Under consideration on appeal was the degree of similarity needed to satisfy ‘sufficient probative value‘ within the meaning of the Evidence Act 1995 (NSW), s 97(1)(b).
The High Court positioned itself adverse to the line of case law in Victoria, and held that it wasn’t necessary for the evidence to possess sufficient common features with the conduct in the charge so as to demonstrate a pattern that increases the likelihood of that conduct. Victorian case law had taken a much more restrictive approach to the admission of tendency evidence.
The Hughes decision is unlikely to have completely quelled controversy in this area of law.
Best Served Cold – Clurname Pty Ltd v McGraw-Hill Financial, Inc  FCA 1319
In a decision already making waves, Justice Wigney of the Federal Court of Australia granted the representative applicants in Clurname Pty Ltd v McGraw-Hill Financial, Inc  FCA 1319 leave to further amend their originating application and statement of claim under the Federal Court Rules 2011 (Cth), rr 8.21 & 16.53. Significantly, the applicants sought to introduce a new cause of action in the tort of deceit.
The Clurname proceedings allege that group members sustained losses arising from their investment in synthetic collateralised debt obligations assigned credit ratings by the respondents around the time of the global financial crisis. The proposed amendments were sought in order to ‘lay the groundwork for a response to [the respondents] limitation defence to the existing claims‘.
In making his decision, Justice Wigney – who in the first paragraph of the judgment aligns himself with the biblical patience of Job – stated that there was ‘little doubt’ the proposed deceit cause of action fell within the Limitation Act 1969 (NSW), s 55(1)(a), and that ‘… the six year limitation period, which would otherwise commence to run when the cause of action accrued, would be postponed until the time that Clurname first discovered, or should with reasonable diligence have discovered, the alleged fraud or deceit‘.
Justice Wigney conclusively restated the principle that ‘[a] person can be said to have relevantly discovered a fraud if they know the facts capable of proving a prima facie case‘, and accepted the evidence of the applicants that they had no reasonable basis to plead a tort of deceit case until August 2017.
The trial is set to begin in March 2018. Clurname is one to keep an eye on next year.
Despite both Wilkie and Re Canavan occupying the most airtime this year, the decision with arguably the most extensive impact was the Penalty Rates decision of the Fair Work Commission. As part of its four yearly review of awards required by the Fair Work Act 2009 (Cth), s 156, the Commission considered the Saturday, Sunday and public holiday penalty rates applicable to a range of workers in the retail and hospitality industries. The Commission held that a number of awards didn’t meet the modern awards objective.
The decision was controversial and found both support and condemnation. The government was in favour of the cuts, insisting that the decision would assist small business owners. Unions, however, disagreed.
In coming to its decision, the Fair Work Commission Full Bench stated that while the Fair Work Act 2009 (Cth), s 134(1)(a), is a consideration against the reduction of Sunday penalty rates, the ‘primary purpose of such penalty rates is to compensate employees for the disutility associated with working on Sundays, it is not designed to address the needs of the low paid’, and that ‘the extent of the disutility is much less than in times past’.
In October, the Federal Court of Australia found no error in the Penalty Rates decision. In Shop, Distributive and Allied Employees Association v The Australian Industry Group  FCAFC 161 the Full Court held that ‘[t]he task of ensuring that modern awards comply with the standards set by s 134(1) and the task of making a judgment as to what is “fair and relevant” is not entrusted by the legislature to this Court’.
Penalty rates will reduce gradually for those impacted by the decision.
Competitive Gamblers United – Australian Competition and Consumer Commission v Australian Competition Tribunal  FCAFC 150
Finally, in the competition law space, the Full Court of Federal Court referred the matter of the proposed acquisition of Tatts Group Ltd’s (Tatts) issued share capital by Tabcorp Holding Ltd (Tabcorp) back to the Australian Competition Tribunal for ‘further consideration’.
The acquisition, referred to by the Court as a merger, was to proceed by way of a scheme of arrangement. Tabcorp and Tatts, possibly understanding the difficulties the proposed merger faced in the Australian Competition and Consumer Commission’s (ACCC) review process, bypassed the ACCC and went straight to the Australian Competition Tribunal for its authorisation under the Competition and Consumer Act 2010 (Cth), s 95AT.
While the Competition and Consumer Act 2010 (Cth), s 50, prohibits the acquisition of shares in a body corporate ‘if the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in any market‘, s 95AT permits the Australian Competition Tribunal to grant authorisation for such an acquisition.
The referring the matter back for further consideration, the Court stated ‘[o]ne way of characterising the legal error is that the Tribunal failed to carry out its task and made a jurisdictional error by omitting to deal with a central issue raised by the ACCC in Tabcorp’s application to the Tribunal‘.
Perhaps frustratingly for the ACCC, in Applications by Tabcorp Holdings Limited  ACompT 5, the merger was again granted authorisation.
The year of law in 2017 was one for the record books. It saw important constitutional questions tried, a divergence in the law settled, old principles reaffirmed and a record defamation damages decision. With so many important issues still being litigated and new issues sure to arise, the trend will undoubtedly continue into 2018.